macdl spring 09macdl president’s letter 1 2009 macdl meeting schedule 1 2009 legislative update 2...
TRANSCRIPT
As my tenure as President begins to wind
down, it strikes me how active and passion-
ate the membership and the Board of
Directors of MACDL continues to be.
MACDL has identified many pieces of legis-
lation that need to be lobbied and testified
against, and several more that need to be
vociferously supported. MACDL has been
instrumental in assisting with the move to
expand the Missouri Plan to Greene County
and in drafting and suggesting legislation to
institute and expand the rights of citizens to
have prior convictions expunged.
It has been a very busy and productive year.
At present, a serious move is afoot to revise
the current Criminal Code in Missouri.
Members of our organization are serving on
the committee and speaking up for practical
and sane answers to thorny questions.
Should you desire to assist in this effort, the
first step is becoming active in the Criminal
Law Committee of the Missouri Bar. At pres-
ent, criminal defense attorneys and the
interests of the innocent accused are under-
represented on this important committee.
Please consider becoming active.
In the ten months that I have had the honor
and privilege to serve as President of
MACDL, I have often been asked: “What
can I do to help?” First, look to the commit-
tees of the Missouri Bar. Second, come to
the Annual Meeting in April being held in
Branson this year. There will be MACDL
committee reports from our active commit-
tees touching on everything from legislative
issues to acting as a Strike Force for lawyers
under attack to writing Amicus briefs on
important issues to arranging our second-to-
none CLE programs. These MACDL com-
mittees are not just for Board Members, but
are for you. Come to the next Board Meeting
and see what MACDL does where the rub-
ber meets the road. Become an active part
of it.
It is with mixed emotions that I pen this note.
It has been a humbling and enjoyable expe-
rience this year watching MACDL grow and
begin to reach into law schools to begin
mentoring students that may one day
become our colleagues. It has been exciting
and instructive to attend our seminar pro-
grams and work diligently to overhaul our
CLE offerings to best serve our members.
On the other hand, it is coming to an end. I
will miss the fellowship and time spent with
the members and the Board of Directors.
How fortunate I am to feel the same as the
optimistic orphan from the Broadway show
“Annie.” She continued to stay bright and
positive even in the moment of farewell by
saying: “How lucky I am to have something
that makes saying goodbye so hard.”
See you in Branson.
MACDLMMiissssoouurrii AAssssoocciiaattiioonn ooff CCrriimmiinnaall DDeeffeennssee LLaawwyyeerrss
NewsletterP.O. Box 1543
Jefferson City, MO 65102
Ph: 573-636-2822
www.MACDL.net
MACDL President’s Letterby S. Dean Price
In This Issue
MACDL President’s Letter 1
2009 MACDL Meeting Schedule 1
2009 Legislative Update 2
Welcome Aboard! 3
Member Services 3
MACDL ListServ
Case Law Update
Amicus Curiae Committee
We’re Looking for the Best! 4
Fall CLE Sponsors Thank You 4
Building a Better MACDL 4
Web Site ... Take a Look!
MACDL Web Traffic Report 4
Ten Top Federal Decisions 5
The Brass Verdict - 6
- Book Review
Smulls v Roper Amicus Brief 6
DWI and Traffic Law Update 7
MACDL 2009 Annual Meeting 11
Agenda
The MACDL Newsletter is a semi-annual publication of the
Missouri Association of Criminal
Defense Lawyers
P.O. Box 1543
Jefferson City, Missouri 65102
Phone: 573-636-2822
Fax: 573-636-9749
Email: [email protected]
Website: www.MACDL.net
Your comments and suggestionsare welcome!
Spring, 2009
April 17-18, 2009
MACDL Annual Meeting & Spring CLEBranson Convention Center � Branson, MO
July 24-25, 2009
Bernard Edelman DWI Defense InstituteLodge of Four Seasons � Lake Ozark, MO
October 23, 2009
MACDL Fall CLESt. Louis � Location TBD
MACDL 2009 Meeting Schedule
Page 2 MACDL Newsletter Spring, 2009
2008-2009
Officers & Board
Officers
President
S. Dean Price � Springfield
Vice President
Michael C. McIntosh � Independence
Secretary
Travis Noble � St. Louis
Treasurer
Dan Moore � Poplar Bluff
Past President
Grant J. Shostak � St. Louis
NACDL Representative
Dan Dodson � Jefferson City
Board Members
Kim Benjamin � HarrisonvilleRobert Childress � SpringfieldJason Coatney � Springfield
Don Cooley � SpringfieldKevin Curran � St. Louis
Jeff Eastman � GladstoneBrian Gaddy � Kansas City
Bruce Galloway � OzarkStaci McNally � Tuscumbia
Michelle Monahan � St. LouisPatrick (P.J.) O`Connor � Kansas City
J. Martin Robinson � Jefferson CityJohn Rogers � Clayton
John Simon � Kansas CityCarl Ward �Washington
Executive DirectorRandy J. Scherr � Jefferson City
Lifetime MembersDan Dodson
Joseph S. Passanise
MACDLMMiissssoouurrii AAssssoocciiaattiioonn ooff CCrriimmiinnaall DDeeffeennssee LLaawwyyeerrss
The First Session of the 95th General Assembly began on January 7th with the swearing
in of 43 new Representatives and five new Senators. There have been over 1,075 bills filed
during this legislative session which is around 15% fewer than the number that had been
filed at this time last session.
The leaders of the House and Senate, along with the Governor, have made job creation a
number one priority this year and thus far the Legislature has focused most of its efforts on
job creation initiatives and tackling the tough budgetary constraints the state is facing.
Listed below are the Priority Bills MACDL is tracking.
MACDL: Pro
HB 146 Hughes - Authorizes the expungement of certain criminal records including
convictions for any nonviolent crime, misdemeanor, or nonviolent drug violation.
HB 235 Jones (89) - Removes the expiration date for the Statewide Court Automation
Fund and allows the fee to be collected and the fund to function indefinitely.
HB 330 Bruns - Allows courts to impose continuous alcohol monitoring or verifiable
breath alcohol testing for certain offenders of alcohol-related offenses.
HB 484 Deeken - Establishes the Commission on the Death Penalty and places a mora-
torium on all executions until January 1, 2012.
SB 27 Goodman - Modifies provisions relating to the public defender system.
MACDL: Against
HB 33 Sater - Requires the State Highway Patrol to create, maintain, and make avail-
able for public inquiry on the Internet a registry of persons convicted of certain
drug offenses.
HB 62 Lipke - Changes the laws regarding crime prevention.
HB 63 Lipke - Increases the penalty for the crime of resisting or interfering with an
arrest, detention, or stop from a class D felony to a class C felony.
HB 152 Ruestman - Expands the DNA profiling system by requiring any person 17
years of age or older who is arrested for a felony to provide a biological sample
for the purpose of DNA profiling analysis.
HB 317 Lipke - Specifies that no defendant in a criminal case is entitled to compel the
examination of a witness who is younger than 14 years of age.
HB 351 Parkinson - Requires any person who is found guilty of or pleads guilty or nolo
contendere to a felony in this state on or after August 28, 2009, to serve a min-
imum prison term of 85% of his or her court sentence.
HJR 10 Cox - Proposes a constitutional amendment increasing the number of
Governor-appointed citizens serving on the Appellate Judicial Commission and
the number of candidates nominated for vacancies.
SB 30 Stouffer - Requires certain motorists who have had their driver's licenses sus-
pended or revoked to display restricted license plates.
SB 46 Schaefer - Requires any person who pleads guilty to or is found guilty of a
felony on or after August 28, 2009, to serve a minimum prison term of eighty-
five percent of his or her sentence.
“Legislative Update” >p3
2009 Legislative Updateby Brian Bernskoetter
Spring, 2009 MACDL Newsletter Page 3
WWeellccoommee AAbbooaarrdd!!We’d like to welcome the following new members to MACDL!
Andrew Hale � ClaytonFrank Tolen � Carthage
William Tucker � St. LouisSteve Geeding � PinevilleCharles Genisio � Joplin
Wood Investigative Services � SpringfieldJames Feely, Jr. � St. Louis
Julie Hileman � Weldon SpringThomas Carnes � St. Louis
Drew Alan Cooley � Creve CoeurKerry Rowden � TuscumbiaSteve Weir � Washington
Jason Ludwig � Jefferson CityJoseph Luby � Kansas CityTimothy Maxwell � St. Louis
Steven Majors � N. Kansas CityKay Evans � ColumbiaLaurie Ward � Sedalia
Zachary Rennick � WashingtonChristopher Angles � Kansas City
Duane Randle � CamdentonCaterina Ditriaglia � St. Louis
Tim Mudd � Kansas CityLaura O’Sullivan � ClaytonMonique Abby � St. Louis
Stephan Bell � FultonJennifer Bukowsky � Columbia
Quinn Grimes � ClaytonJessica Hathaway � St. Louis
Theresa Lininger-Morman � Kansas CityJaneal Matheson � LibertyKevin O'Brien � ColumbiaWes Rogers � St.Joseph
Mike Stanfield � SpringfieldStephen Williams � St. Joseph
Nikki Wilson � MoberlyRobert Wolfrum � St. LouisDavid Brengle � Jackson
Charles Billings � St. LouisNeil Bruntrager � St. Louis
Daniel Bruntrager � St. LouisJohn Gromowsky � Kansas CityJ Matthew Guilfoil � Kansas City
Sue Kathleen Webber � Kansas CityW. Michael Hamilton � Columbia
Jenny R. Young � ColumbiaAnita K. Oakes � Joplin
Joel Harris � OzarkThomas R.B. Ellis � ColumbiaPatrick Sullivan � Chillicothe
MACDL ListServ
The MACDL Listserv helps facilitate, via
e-mail, all sorts of criminal defense law
discussions, including recommenda-
tions for expert witnesses, advice on
trial practices, etc. Subscription is free
and limited to active MACDL members.
To subscribe, please visit our website
(www.macdl.net); enter the “Members
Only” page and follow the ListServ link.
Case Law Update
For up to date Case Law Updates,
please visit the MACDL website’s
“Newsletter” page and check out the
link to Greg Mermelstein’s Reports
located at the bottom of the page:
http://macdl.net/bridge.asp?pagenum-
ber=48744.
Amicus Curiae
Committee
Don’t forget that MACDL has an Amicus
Curiae Committee which receives and
reviews all requests for MACDL to
appear as amicus curiae in cases
where the legal issues will be of sub-
stantial interest to MACDL and its mem-
bers. To request MACDL to appear as
amicus curiae, you may fill out the ami-
cus request on the MACDL website
(www.MACDL.net) or send a short letter
to Grant J. Shostak, Amicus Curiae
Committee Chair, briefly explaining the
nature of the case, the legal issues
involved, and a statement of why
MACDL should be interested in appear-
ing as amicus curiae in the case. Please
set out any pertinent filing deadline
dates, copies of the order of opinion
appealed from and any other helpful
materials.
Committee Chair: Grant J. Shostak
Shostak & Shostak, LLC
8015 Forsyth Boulevard
St. Louis, MO 63105
Telephone: (314) 725-3200
Facsimile: (314) 725-3275
E-mail: [email protected]
Member Services Legislative Update (Continued from page 2)
SB 180 Bartle - Specifies that knowledge of one's location is not necessary to commit
certain criminal acts.
SJR 9 Lembke - Proposes constitutional amendments modifying the procedures for
selection of nonpartisan judges and provisions relating to judicial commis-
sions.
MACDL: No Position
HB 589 Talboy - Requires any criminal justice entity that conducts eyewitness identi-
fication procedures to adopt written policies for using an eyewitness to iden-
tify a suspect.
SB 8 Champion - Creates a "Crime Laboratory Review Commission" to independ-
ently review the operations of crime laboratories in the state of Missouri that
receive state-administered funding.
SB 36 Goodman - Modifies provisions relating to sexual offenses against children.
SB 310 Bartle - Requires custodial interrogations of persons suspected of certain
serious offenses to be recorded.
SB 312 Goodman - Repeals the current procedures regarding criminal activity forfei-
ture actions and establishes new procedures.
Page 4 MACDL Newsletter Spring, 2009
We’re Looking
for the Best!!The Missouri Association of
Criminal Defense Lawyers
(MACDL) recognizes outstand-
ing service and performance
by dedicated criminal defense
attorneys.
Some of our awards are divided into the various areas of the
state. Not all awards are given each year. The award cere-
mony takes place at MACDL`s Annual Meeting typically held
in April of each year.
If You Know One ...
Nominate Him/Her!
Please take the time to nomi-
nate outstanding criminal
defense attorneys that you
know, see and work with
throughout the state. For more
information on MACDL’s
awards including how to nomi-
nate an attorney please visit
our website’s (www.macdl.net)
Awards page.
MACDL Web Traffic Report
Activity Summary (10/20/08 - 2/26/09)
Total Visitors 10,580
Average Visitors per Day 80
Total Unique Visitors 2,431
MMAACCDDLL wwoouulldd lliikkee ttoo tthhaannkkoouurr 22000088 FFaallll CCLLEE SSppoonnssoorrss::
The Bar Plan
Wood Investigative Services
Interlock of St. Louis, Inc.
Over the next few weeks, MACDL’s web site will be upgraded
with new and improved features, including:
� a member populated motion bank;
� online commerce;
� the ability to pay dues online and to set them up on a
recurring basis; and
� the ability to register and pay for CLE’s online.
We will also be incorporating an interactive legislative feature
that will allow a faster, more convenient way to communicate
with your Representative or Senator on key issues. We have
made improvements to our “Contact Us” page so we can bet-
ter handle your inquiries.
We invite you to visit our site, www.MACDL.net , and get famil-
iar with all these new features and to interact with your fellow
MACDL members via our new chat conference.
Building a Better
MACDL Web Site
... Take a Look!
Spring, 2009 MACDL Newsletter Page 5
Top Ten Federal Decisionsby Bruce C. Houdek
U.S. v. Spikes 543 F.3d 1021 (8th Cir. 2008).
Imposition of a fine only and deferred
prosecution do not constitute a “criminal
justice sentence” under the Federal
Sentencing Guidelines for the purpose of
increasing the defendants criminal history
points.
U.S. v. Pierson 544 F.3d 933 (8th Cir. 2008).
Admission of a 20-year old conviction pur-
suant to Fed. R. Evid. 404(b) is not error
where the defendant opened the door
while testifying offering related favorable
evidence.
U.S. v. Foxx 544 F.3d 943 (8th Cir. 2008).
When calculating a drug conspiracy
defendant’s sentence under the guidelines
the Court may consider drugs distributed
by the conspiracy prior to his joinder when
such distribution was reasonably foresee-
able to him.
U.S. v. Webb 545 F.3d 673 (8th Cir.).
The Court in calculating a drug defen-
dant’s sentence may rely on drug amounts
that exceed the amount alleged in the
indictment if the higher amount is proven
by a preponderance of evidence.
U.S. v. Street 548 F.3d 618 (8th Cir.).
The Eighth Circuit reversed the admissibil-
ity of expert testimony concerning the law-
lessness of a motor cycle gang where
there was no evidence that the defendant
was a member.
U.S. v. Williams 537 F.3d 969 (8th Cir.
2008).
For the purpose of determining whether or
not a defendant is an armed career crimi-
nal pursuant to 18 U.S.C. § 924 (e)
Missouri conviction for auto theft is not a
crime of violence unless it is theft by coer-
cion.
Larson v. U.S. 2008 WL 5397757.
Defendant plead guilty and cooperated
with the government in other cases. The
government denied his request to file a
motion for downward departure pursuant
to United States Sentencing Guideline §
5K.1. The Court held that the motion can
only be considered by the District Court if
there is a substantial threshold showing by
the defendant of unconstitutional conduct
or motivation by bad faith on the part of the
US Attorney’s Office. The opinion sug-
gests that information provided prior to a
plea agreement or cooperation agreement
cannot be considered.
U.S. v Fisher __F.3d__ 2008 WL 5351907.
The Court denied the defendant’s request
for a two-level acceptance of responsibility
deduction pursuant to United States
Sentencing Guideline §3E1.1(a). The
defendant has the burden to establish that
he has demonstrated acceptance of
responsibility and the Court may consider
aspects of the defendant’s conduct
beyond the mere fact of a guilty plea. The
Court found that the defendant had waited
until the day before trial to enter his plea
and the Court could consider the timeli-
ness of his conduct, could also consider
that he had attempted to minimize his
offense conduct, made false denials, and
frivolously objected to relevant conduct
and affirmed the finding that he had failed
to carry his burden of demonstration of
entitlement to the reduction.
Rothgrey v. Gillespie County 128 S. Ct.
2578 (2008).
Supreme Court held that the defendant’s
initial appearance before a judicial officer,
where he is informed of the charges
against him and his liberty is subject to
restriction constitutes the commencement
of adversary judicial proceedings, which
trigger his Sixth Amendment right to coun-
sel.
Watson v. U.S. 128 S. Ct. 579 (2007).
A person does not use a firearm in relation
to a drug offense in violation of 18 U.S.C.
§ 924 (c) where he trades drugs for the
firearm.
Page 6 MACDL Newsletter Spring, 2009
MACDL filed an amicus brief in support of Herbert Smulls’ certiorari petition in the
U.S. Supreme Court. Smulls was convicted and sentenced to death by an all white
jury in St. Louis County after the prosecutor used a peremptory strike to exclude the
only African American venire person.
A panel of the Eighth Circuit ruled in Smulls’ favor on the Batson claim in his defer-
ral habeas corpus case, but the Eighth Circuit in bank reversed that decision and
denied relief.
The MACDL amicus brief, which is available at www.MACDL.net, focused on the
history of giving pretextual reasons for peremptory strikes of minority jurors by mem-
bers of the St. Louis County prosecutor’s office. Joe Luby of the Public Interest
Litigation Clinic in Kansas City authored the brief.
Smulls v Roper Amicus Briefby Charles Rogers
Michael Connelly released two books in 2005, The Lincoln
Lawyer and The Closers. First, The Closers featured his long time
hero, Los Angles police detective Harry Bosch.
In the second novel, Michael Haller is a skilled lawyer with a
problematic life. Michael’s car is his office as he tells his driver, "I
haven't had an office since I left the Public Defenders Office
twelve years ago. My car is my office. I've got two other Lincolns
just like this one. I keep them in rotation. Each one's got a printer,
a fax and I've got a wireless card in my computer. Anything I have
to do in an office I can do back here while I'm on the road to the
next place. There are more than forty courthouses spread across
L.A. County. Being mobile is the best way to do business."
In The Brass Verdict, he merges his two characters into one
compelling legal thriller. While Connelly’s novel touches on many
of the important legal topics of the day, the story is purely an
entertaining legal thriller. There is no preaching here. Characters
rule this novel.
Coming off The Lincoln Lawyer, Michael Haller has taken a self
imposed lay-off from the law. During his time off, healing from the
gun shoots from his last trial, he found himself addicted to pain
pills. He has decided to ease back into the practice by taking only
a few cases. However, Jerry Vincent a former Prosecutor and
friend is killed and Connelly inherits his cases. Most of them are
dogs but one is a rainmaker.
Walter Elliot is a high powered studio executive. Walter Elliot is
accused of killing his wife. That is where Harry Bosh comes in to
play. Bosch wants to see Vincent's past and present files because
he believes the murderer was a client, but Mickey refuses to
release the information that would violate lawyer/client privileges.
Bosch has 33 years on the force and is "a man on a mission" to
seek justice wherever he can find it. He's a tough cop and an
honest one, and there are angry sparks between him and Mickey
from the moment they first meet. Mickey would just as soon have
nothing to do with Harry. The deeper both men dig into Vincent's
past, the more suspicions are raised.
The real fun in this story is guessing at what is coming next. Are
you right or wrong? More often than not your wrong, but should
have known better. As the pieces come together and this novel
wraps up with a trial, each of the characters are brought back
together to tie all of the story lines and subplots to a satisfying
conclusion. The novel reads easy and plot lines are well
developed. This book is easy to recommend.
The Brass VerdictAuthor: Michael Connelly; Review by Scott Hamilton
Spring, 2009 MACDL Newsletter Page 7
Dorsey v. Wilson263 S.W.3d 790 (Mo.App. E.D., September 16, 2008)
Writ of Mandamus proceeding. Relator challenged his continued
incarceration after having successfully completed the ITC pro-
gram. Writ made permanent. The Eastern District holds that
Section 559.115.3 requires that one be released on probation
upon successful completion unless the trial court finds “such
release constitutes an abuse of discretion.”
By statute, a finding of abuse of discretion may only be made
after conducting a hearing on the matter within ninety to one hun-
dred and twenty days of the offender’s sentence. Since no timely
hearing was held, Relator ordered release.
Rozier v. Director of Revenue--- S.W.3d ----, 2008 WL 4388191, Mo.App. W.D., September 30,
2008 (NO. WD68534)
Although driver challenged arresting officer’s decision to arrest,
in cross-examination she failed to contest the accuracy of a
video which recounted her appearance, responses to questions
and performance on both the walk and turn and one leg stand
tests. The arresting officer’s uncertainty as to probable cause
immaterial as evidence is to be viewed from the perspective of a
prudent, cautious and trained police officer. Judgment in favor of
driver reversed.
Smith v. Director of Revenue260 S.W.3d 896 (Mo.App. S.D. August 27, 2008)
Driver arrested for DWI, given the Implied Consent Advisory and
asked to submit to a breath test. His efforts resulted in a print out
of “invalid sample.” Conflicting evidence was offered as to cause
of “invalid sample” readout. LEO then asked driver to submit to
a blood test which driver refused. Driver was thereafter served
with a notice of revocation.
The trial court affirmed the revocation and driver appealed.
Southern District affirms noting that regardless of the cause of
the “invalid sample” reading, LEO had the right to request a sec-
ond test. Since the second test was requested and refused, the
trial court properly affirmed the revocation.
This opinion also reaffirms that LEO need not reread the Implied
Consent Advisory before asking for a second chemical test.
Krieger v. Director of Revenue266 S.W.3d 316 (Mo.App. W.D. 2008)
In a 302.500 de novo proceeding, driver argued that he rebutted
the Director’s prima facie case with evidence that his BAC was
less than .08% at the time of stop. The trial court agreed and set
aside his suspension.
The Director appealed arguing the trial court erred in admitting
an expert’s metabolic curve calculations. Specifically, the
Director argued that the driver’s representations as to his history
of alcohol consumption were not “facts and data otherwise rea-
sonably reliable” as required by Section 490.065.3 in that driver’s
statements to the expert and when testifying differed from dri-
ver’s representations to the arresting officer.
The Western District affirms. Issues as to the driver’s credibility
as to consumption history are matters entrusted to the sound
and discretion of the trial court which will not be reversed on
appeal.
Miller v. Director of Revenue268 S.W.3d 407 (Mo.App. W.D., August 05, 2008)
Driver challenged ten year denial of license for three or more
DWI convictions. In a trial court proceeding, Director offered a
certified copy of its file containing records from the State of Iowa.
The appellate court found such records sufficient to meet the
Director’s burden of production.
Appellate Court held that burden of persuasion then shifted to
driver to show that the facts that reportedly were established by
the administrative record were not true or that the grounds for the
suspension were unlawful, unconstitutional or otherwise insuffi-
cient under Section 536.150.
Since driver offered no evidence, he failed to carry his burden of
persuasion. Counsel’s arguments as to the sufficiency of the
administrative record were resolved by referencing the Iowa
Code and a close examination of the records themselves.
Judgment reversed.
Swan v. Vincent268 S.W.3d 422 (Mo.App. W.D., August 05, 2008)
Minor involved in a one car accident. Upon LEO’s arrival he
observed evidence commonly associated with alcohol impair-
ment. Due to minor’s condition no FST’s were administered.
LEO accompanied minor to hospital where he requested a blood
test. The minor refused and was issued a notice of revocation of
his driver’s license.
DWI and Traffic Law Updateby Jeff Eastman
“DWI and Traffic Law Update” >p8
www.MACDL.net
Page 8 MACDL Newsletter Spring, 2009
In a Section 577.041 challenge, the trial court reversed the
Director’s decision. In an oral pronouncement from the bench,
the trial court found that as to individuals under 21, there must be
evidence of a stop with reasonable grounds that minor’s BAC
exceeded .02%. Here, the trial court found there was no evi-
dence sufficient to find that an arrest had been made. In a sub-
sequent written judgment, the trial court stated that “Petitioner
was under the age of 21 years old and that Respondent pre-
sented no evidence that the police officer had reasonable
grounds to believe, after stopping Petitioner, that Petitioner has
a BAC of .02% or greater.”
The Director appealed and challenged both findings. The
Western District reversed. As to the oral pronouncement, the
appellate court found that the officer’s actions in accompanying
the minor in the ambulance, the driver being strapped in route
and remaining with him at the hospital were sufficient to consti-
tute a stop. As to the written judgment, the appellate court found
ample evidence of reasonable suspicion that the minor had a
BAC of .02% or more when considering the manner in which he
drove, the presence of alcohol containers at the scene, the odor
on his breath, the condition of his eyes and his uncooperative
behavior. The trial court’s judgment was thereafter reversed.
State v. Karl--- S.W.3d ----, 2008 WL 5130118, Mo.App. W.D., December 09,
2008 (NO. WD68855)
Defendant found guilty after trial by jury of driving while intoxi-
cated. On appeal he argued that the State presented insufficient
evidence to convict beyond a reasonable doubt. The Western
District affirms finding sufficient evidence in the record for which
a reasonable juror could conclude that State met its burden as to
each element.
The Western District reaffirms that it accepts as true all evidence
favorable to State including all favorable inferences drawn from
the evidence and disregards all evidence and inferences to the
contrary. Here, State’s witnesses testimony as to indicia of intox-
ication and observations of driving close in time to one car acci-
dent sufficient to sustain State’s burden. The Court disregards
defendant’s witness’s testimony as “unfavorable to the state.”
Rugg v. Director of Revenue--- S.W.3d ----, 2008 WL 5145377, Mo.App. E.D., November 18,
2008 (NO. ED90855)
In this trial de novo proceeding, the Director’s evidence con-
sisted solely of records. Petitioner testified but did not controvert
many of the “facts” contained within the Director’s file. The trial
court found no probable cause. Director appealed. In reversing
the trial court’s decision, the Eastern District emphasizes the trial
court made no finding that the arresting officer’s statements were
“incredible” and held that on appeal, it would not affirm on the
presumption that the trial court did so.
Citing Brown v. Director of Revenue for the proposition “when the
evidence supporting revocation is uncontroverted and the trial
court has not specifically found the Director’s witness incredible,
appellate courts will not presume that a trial judge found a lack
of credibility and will not affirm on that basis.” The Court distin-
guishes the instant proceeding from those cases wherein the
Director’s records were inherently contradictory which provided
a sufficient basis for the trial court to set aside the administrative
sanction.
State v. Severe--- S.W.3d ----, 2008 WL 4976221, Mo.App. W.D., November 25,
2008 (NO. WD69162)
In a post-Turner decision, the Western District holds that the
State may not offer new or additional evidence on remand in an
effort to establish a Defendant’s enhanced offender status. To do
so would violate the expressed timing elements of Section
577.023.8 and Supreme Court’s interpretation of similar lan-
guage in State v. Emery, 95 S.W. 3d 98 (Mo. banc 2003).
See also Bizzell v. State, 265 S.W. 3d 892, wherein a Turnerissue occasioned a remand with instructions to the trial court to
allow the State to present other evidence to establish
Defendant’s persistent offender status. Please note in Bizzell the
issue as to the propriety of offering additional evidence appears
not to have been raised in the appellate proceeding.
State v. Gaw--- S.W.3d ----, 2008 WL 4823595, Mo.App. S.D., November 07,
2008 (NO. SD 28715)
Defendant involved in one car accident. When LEO arrived,
defendant was outside the vehicle. LEO observed indicia of
intoxication and detected an odor of burnt marijuana on defen-
dant. When asked, defendant gave LEO a small baggie which
LEO believed to be marijuana. In a subsequent pat down, LEO
found paraphernalia in defendant’s pocket.
Defendant was arrested for possession of marijuana. After a
positive PBT, LEO asked defendant who was driving to which
Defendant replied it was either his girlfriend or a friend of hers.
According to LEO, defendant later in the investigation admitted
being the driver.
Defendant’s motion to suppress was denied. In a bench trial
defendant was found guilty. On appeal, he alleged that the trial
court erred in admitting his statements as to who was driving in
that he had been subjected to a custodial interrogation without
having been advised of his Miranda rights. The Southern District
agreed.
After defendant’s arrest for possession, LEO inquired as to who
was driving. According to LEO, on this latter occasion, defendant
admitted he was the driver. Defendant had not been Mirandized
prior to this admission. The State concedes and the Southern
District held that defendant’s Miranda rights were violated by the
initial series of questions asked after defendant’s arrest for pos-
session, questions which resulted in defendant’s admission to
driving.
“DWI and Traffic Law Update” (from page 7)
“DWI and Traffic Law Update” >p9
Spring, 2009 MACDL Newsletter Page 9
However, the State argued that defendant’s post Miranda state-
ments rendered the earlier violation harmless. The Southern
District disagreed. This appellate court found that the same LEO
conducted both the pre and post Miranda interrogations while
exercising continued control over defendant. The Court further
found that the content of defendant’s statements “sufficiently
overlap to be considered as responses to a continuous line of
inquiry.” It was thus error to admit LEO’s testimony to defen-
dant’s admissions of driving. Cause remanded for new trial.
State ex. rel Moore v. Brown--- S.W.3d ----, 2008 WL 4949305, Mo.App. S.D.,2008.,
November 19, 2008
After an Alford plea, defendant was sentenced to sixty days in jail
with the execution thereof suspended. Within ten days of defen-
dant’s sentence, she moved to set aside her plea and/or in the
alternative to be re-sentenced. During the hearing on her motion,
she withdrew her request to her Alford plea electing to proceed
on her alternative motion for re-sentencing on the basis that
manifest injustice occurred. Over the State’s objection, an
Amended Judgment was thereafter entered which, amongst
other things, converted her sentence from an SES to an SIS.
In a Writ of Mandamus proceeding, the State challenged the trial
court’s authority to set aside the original judgment. The Southern
District observed that the trial court claimed that Rule 29.07(d)
gave it the inherent authority to re-sentence. The Southern
District disagreed. While Rule 29.07 allows a trial court to set
aside a judgment and permit a Defendant to withdraw her guilty
plea, this defendant expressly withdrew her request to withdraw
her guilty plea. Since the defendant did not pursue the withdraw
of her plea, Rule 29.07(d) not apply and the trial court lacked
authority to re-sentence. Writ made permanent.
State v. Craig--- S.W.3d ----, 2008 WL 4700966, Mo.App. W.D., October 28,
2008 (NO. WD68570)
In a “hybrid” proceeding, defendant plead guilty to the class B
misdemeanor of DWI but did not admit that the three prior
offenses listed in the Information were sufficient to prove his
aggravated offender status. He moved to dismiss the felony
information arguing that the prior pleas relied upon were not
knowingly, voluntarily and intelligently made as required by
Supreme Court Rules and that as to one prior conviction there
was neither a record of his guilty plea or a finding of guilt.
The trial court denied the motion and sentenced defendant as an
aggravated offender. defendant filed a direct appeal.
After a sua sponte review of jurisdiction, the Western District dis-
missed the appeal noting that the only issues cognizable on a
direct appeal from a guilty plea are subject matter jurisdiction of
the trial court and the sufficiency of the charging information.
Since defendant’s appeal was predicated upon neither, his
appeal was dismissed.
Coleman v. Missouri State Criminal RecordsRepository268 S.W.3d 464, Mo.App. E.D., October 28, 2008 (NO. ED 90823)
In 1964 Petitioner was arrested for and subsequently convicted
of stealing. In 2007, at age 68, she sought expungement of her
arrest records so as to expand her charitable volunteer efforts to
a local homeless shelter.
During the expungement proceeding, Petitioner testified that she
probably committed the charged crime and believed that she had
plead guilty to the same.
In granting her requested relief, the trial court found, amongst
other things, that Petitioner’s arrest was based on false informa-
tion and that there was no probable cause at the time of the
action to expunge to believe that Petitioner had committed the
charged offense.
In reversing the trial court’s decision, the Eastern District found
that Petitioner had failed to satisfy at least two of the statutory
requirements, to wit: that her arrest was based upon false infor-
mation and that there was no probable cause at the time of the
expungement action to believe that Petitioner had committed the
offense.
The Court noted that not only did Petitioner acknowledge the
prior finding of guilt, she also admitted to having committed the
subject offense. Petitioner was therefore not entitled to request
expungement.
The trial court also found that application of the expungement
statute to the present facts was inconsistent with the legislature’s
intent. While the appellate court agreed, it recognized that a
court could not go beyond the plain and ordinary meaning of the
words in the statute which deprive a court of the equitable power
to close and expunge arrest records. Judgment reversed.
See also Martin v. Missouri State Criminal Records Repositoryand Missouri State Highway Patrol, 267 S.W. 3d 808 (Mo.App.
E.D. 2008) wherein the Court held that where sentences
imposed, a conviction results thus disqualifying applicant for
expungement.
Smith v. State267 S.W.3d 829 (Mo.App. E.D., October 28, 2008)
Petitioner sought expungement of his arrest record. The State
consented to the requested relief but then appealed the trial
court’s judgment citing as error the absence of a hearing on the
record.
In affirming the trial court’s judgment, the Eastern District
observed that a hearing on the record is required by both Section
512.180.2 and Sellenriek v. Director, 826 S.W. 2d 338 (Mo.
1992). However, the State failed to establish that the hearing was
not recorded through documentation in the legal file or an affi-
davit from the circuit clerk or court reporter. The court also noted
“DWI and Traffic Law Update” >p10
“DWI and Traffic Law Update” (from page 8)
Page 10 MACDL Newsletter Spring, 2009
that the State failed to set forth what error the trial court commit-
ted or how the state was prejudiced by the unavailability of a
transcript and the trial court’s ruling. Judgment affirmed.
Pruessner v. Director of Revenue--- S.W.3d ----, 2008 WL 5454216 (Mo.App. E.D., December 16,
2008)
Trial court set aside administrative license sanction under
302.500 et seq. finding neither probable cause nor a BAC in
excess of .080%. The Eastern District reversed. Appellate Court
finds that officer’s observation of lane weaving and speed obser-
vations coupled with an odor, admission of consumption, watery
and glassy eyes as well as poor performance on the alphabet
test and a positive PBT were sufficient to establish probable
cause.
Driver’s paraplegic condition prohibited administration of walk
and turn and one leg stand test. However, the inability to admin-
ister either procedure did not preclude a probable cause finding
as probable cause may exist even in their absence.
Driver’s challenge to the BAC result likewise rejected when
driver offered no evidence to rebut Director’s prima facie case.
Driver offered no evidence in support of driver’s argument that
there was no 15 minute observation period or that proscribed
conduct had occurred within the observation time frame.
Hollon v. Director of Revenue--- S.W.3d ----, 2008 WL 5130107, Mo.App. W.D., December 09,
2008
Refusal proceeding. Western District holds that evidence of
speed, admission of consumption, odor, and glassy and watery
eyes were facts “sufficient” for officer to “suspect” that driver may
have been driving while intoxicated and “justified” administrating
PBT under Section 577.021.
Western District rejects trial court’s expressed finding to PBT
unreliability. Trial court’s stated reason for rejecting PBT not sup-
ported by the record. Although trial court found driver had not
been observed for the minimum 15 minute deprivation period,
Western District disagreed. Video evidence confirmed driver’s
representation that he last consumed alcohol a distance of 42
miles from point of stop. From such evidence, there was no basis
for the trial court to have found that the officer had failed to com-
ply with requisite deprivation. Judgment reversed.
“DWI and Traffic Law Update” (from page 9)
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8:30 a.m. - 9:00 a.m.
Registration/Breakfast
9:00 a.m. - 10:15 a.m.
“Winning in the Real World — Talking to Prosecutors &Judges”
Speaker: J.R. Hobbs, Kansas City, MO
10:15 a.m. - 10:30 a.m.
Break
10:30 a.m. - 11:30 a.m.
“Winning is Hard Work”Speaker: Rob Russell, Sedalia, MO
11:30 a.m. - 1:15 p.m.
Lunch — Awards Presentation
1:15 p.m. - 2:15 p.m.
Title – TBD
Speaker: Scott Rosenblum, St. Louis, MO
2:15 p.m. - 3:15 p.m.
“When Winning is … Pre-Trial Motions that Matter”Speaker: Dee Wampler, Springfield, MO
3:15 p.m. - 3:30 p.m.
Break
3:30 p.m. - 5:00 p.m.
“When Winning is… Effectively Persuading the Judge to Your Side”Judge’s Panel
Missouri Supreme Court Judge Zel Fischer
Circuit Court Judge Jacqueline Cook
Cass & Jackson
Circuit Court Judge Charlie Atwell
Jackson
Circuit Court Judge John Moody
Wright, Douglas & Ozark
8:00 a.m.
Breakfast
8:15 a.m. - 8:45 a.m.
MACDL Membership Meeting
8:45 a.m. - 9:00 a.m.
Legislative Update
Speaker: Randy Scherr, MACDL Executive Director
9:00 a.m. - 10:15 a.m.
“When Winning is ...Sticking to the Basics”
Speaker: Dean Price, Springfield, MO
10:15 a.m. - 10:30 a.m.
Break
10:30 a.m. - 12:00 p.m.
“When Winning is ... Suppressing Statements & Evidence”
Speaker: Dan Birdsong, Rolla, MO
Friday, April 17, 2009
MACDL 2009 Annual Meeting AgendaSaturday, April 18, 2009
Branson Special Points of Interest:
• Branson Landing
• Silver Dollar City (800-475-9370)
• Dixie Stampede (800-520-5544)
• Table Rock Dam
• Ride the Ducks (877-88-QUACK)
• Talking Rocks Cavern (800-600-CAVE)
Branson, MO
For decades, Branson has been known as an ideal loca-tion for family vacations and leisure groups, hosting mil-lions of visitors each year.
Spring is a great time to head to one of the area’s lakesor golf courses or take a hike along a nature trail.
Many of the area’s live performance venues introducenew acts and new shows in the spring of each year.
Considering the wide range of world-class live entertain-ment, award-winning theme parks, abundant shopping inmore than 400 retail shops and outlet stores, 400 plusrestaurants, unique museums and exhibits and may one-of-a-kind facilities and attractions, Branson offers atten-dees plenty of options when your meetings are not insession.
Blend these unique man-made characteristics with thosecrafted by Mother Nature — three pristine lakes (with athousand miles of shoreline) for fishing and boating, sur-rounded by wooded foothills providing a perfect settingfor 200 holes of championship golf — and your have themakings for an unequaled meeting and convention des-tination offering something for everyone.
We hope you enjoy your visit to Branson!
Missouri Association of Criminal Defense Lawyers
P.O. Box 1543
Jefferson City, MO 65102
www.macdl.netMACDLMMiissssoouurrii AAssssoocciiaattiioonn ooff CCrriimmiinnaall DDeeffeennssee LLaawwyyeerrss
MACDLAnnual Meeting 2009Missouri Association of Criminal Defense Lawyers
How to Win Your Case Before Trial
And, if you’re lucky, get a dismissaland an apology!
Hilton Branson Convention CenterApril 17-18, 2009